In the Know: Labor Unions, Collective Bargaining Agreements, and Separations
Talk of labor unions has gained increased media attention in recent years. From Amazon to Starbucks and from Barnes & Noble to Uber, headlines have focused on a call to organize. Even so, a recent episode of NPR’s Planet Money determined that this supposed “boom” might not be as explosive as previously reported. While it’s true that union representation petitions increased by 53 percent in 2022, union membership rates fell to the lowest on record. Meaning that while the interest is there, progress is stymied. NPR refers to what’s happening as “the union paradox,” symptomatic of “near-record-high popularity, but record-low-participation.”
There are several factors behind this paradox, including misnomers, such as the belief that being in a union means having protection from layoffs. Unfortunately, it’s not that simple. There are no guarantees as labor laws vary from state to state, and protections vary from union to union. Instead, there are collective bargaining agreements (CBA). Representing the end result of negotiation between union and employer, the CBA details the terms and conditions of union employment, covering, at a minimum, mandatory issues like wages, hours, and layoff procedures. Approved and amended over time, these documents explain the provisions for workforce processes, accounting for each and every form of union membership. And no two CBAs look alike.
For example, one CBA between a local chapter of the International Brotherhood of Electrical Workers and the regional National Electrical Contractors Association reads:
When making reductions in the number of employees due to lack of work, Employers shall use the following procedure.
(a) Temporary employees, if any are employed, shall be laid off first. Then employees in Group IV shall be laid off next if any are employed in this Group. Next to be laid off are Employees in Group II, if any are employed in this Group, then those in Group II, and then those in Group I.
(b) Paragraph (a) will not apply as long as the special skills requirement as provided in Article 4.14(a) is required.
(c) Supervisory employees covered by the terms of this Agreement will be excluded from layoff as long as they remain in a supervisory capacity. When they are reduced to the status of Journeyman, they will be slotted into the appropriate group in paragraph (a) above.
Believe it or not, this CBA is relatively straightforward. Yet, even without digging in further and defining all of the terms this section references, it’s clear that union layoffs look quite different from corporations. Lawyers.com covers other provisions that often appear in these agreements, such as superseniority, bumping, no layoffs, recalls, and that’s just scratching the surface. Union employers also need to consider a reduction in hours versus a layoff and account for the federal Worker Adjustment and Retraining Notification (WARN) Act, as well as state legislation, including local WARN and “Right to Work” laws – all of which are evolving alongside the interest in unionization.
Severance agreements are a prime example of this, given a February 2023 decision by the National Labor Relations Board “to prohibit employers from requiring laid-off workers to sign certain types of non-disparagement and confidentiality clauses if they want to receive severance.” With implications for all employers subject to NLRB’s authority, including union workers, this is one of those moments where the CBA must be revisited and potentially revised to meet with current requirements.
Given the complexity that comes with managing a union, employers – and workers – need to know, first and foremost, what the CBA requires and what the process looks like. If and when a layoff happens, the CBA must be followed to the letter, which is where an expert partner like Onwards HR comes in to prevent mistakes and ensure compliance during separations.
